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Malayan Law Journal Unreported/2011/Volume /Lai Ah Kau @ Lai Keun Vey v Uniregion Sdn Bhd - [2011]
MLJU 981 - 23 September 2011

[2011] MLJU 981

Lai Ah Kau @ Lai Keun Vey v Uniregion Sdn Bhd

HIGH COURT (JOHOR BAHRU)
VERNON ONG J
NO 23NCvC-38 OF 2011
23 September 2011

Michael K T Chow (Derek Chong Ching Hsiang with him) (Michael Chow) for the plaintiff.

Goh Toh Jen (Nik Mohd Hasrul Nik Hamdan and Suraya Hani bt Abd Halim with him) (TJ Goh & Co) for the
defendant.

Vernon Ong J:

The plaintiff is claiming for an order to compel the defendant to construct a private jetty on the river frontage
of the plaintiff's bungalow pursuant to a sale and purchase agreement.
Brief account of the facts
On 19.5.2007 the plaintiff entered into a sale and purchase agreement ('the SPA') and a Deed of Mutual
Covenants ('the Deed') with the defendant a property developer in connection with the plaintiffs purchase of a
2 storey bungalow in a housing development known as Taman Amira. The bungalow is fronting a river as
illustrated by the defendant's scale model of the housing development. Prior to the execution of the SPA, a
representative of the defendant had confirmed to the plaintiff that apart from the common facilities, the
bungalow would come with a private jetty. The purchase price of the bungalow was RM1,450,000.00. Vacant
possession of the bungalow was delivered to the plaintiff on 1.10.2009.
Plaintiff's case
The defendant had represented to the plaintiff through its sales representative and by way of a scale model
of the housing development that the bungalow had among other common facilities, its own private jetty. In
reliance on the said representations and induced thereby, the plaintiff agreed to purchase the bungalow at a
premium price of RM1.45 million.
Despite the plaintiff's inquiries and reminders the defendant has failed to construct the private jetty.
Consequently, the plaintiff has suffered loss and damage in that the bungalow is not worth the amount paid
by the plaintiff and it has not appreciated in value and/or the value of the bungalow has depreciated since the
purchase in May 2007.
Defendant's defence
The defendant informed the plaintiff the construction of the private jetty was subject to the approval of the
relevant state authority. The private jetty was an addition to the existing facilities. The purchase price of the
bungalow did not include a private jetty.
Findings of the Court
On the evidence adduced at the trial, it is quite clear that the defendant agreed to construct a private jetty for
the plaintiff's bungalow. This finding is fortified by the fact that the private jetty had been constructed and
completed a few months prior to the commencement of the trial of this action. This fact was within the
knowledge of the plaintiff at all material times.
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Notwithstanding the aforesaid, the plaintiff is not satisfied as the approval for the construction of the private
jetty has not yet been obtained. This fact is corroborated by Mr. Wong Yeak Kuan (DW1) a licensed land
surveyor who said that the defendant made an application for consent to the relevant authorities in October
2009; and that the approval would take about 2 years.
The crux of the plaintiffs pleaded case is that the bungalow would have among other common facilities, its
own private jetty. The defendant's sales representative one Joseph Lee Chee Wai informed him that his
bungalow came with a private jetty. Be that as it may, there is nothing in the SPA to indicate that the
bungalow comes with a private jetty.
The only reference to the private jetty appears in the Deed under the heading of facilities and common
services. In the recital to the Deed, it is stated that the parties have agreed to make further covenants and
agreements supplemental to the SPA to regulate the use and enjoyment of the bungalow for the benefit of
the plaintiff and other owners. Pursuant to clause 2.1 of the Deed the defendant agreed to provide the
Facilities and Common Services as mentioned in the Second Schedule as from the date of handing over
vacant possession of the bungalow. In the Second Schedule the words 'private jetty' appears in para, (f)
under the sub¬heading of 'Other Features' under the heading 'A. Facilities' where it states:
(f) Lifetime free parking for yacht or boat at private Jetty area, not inclusive of maintenance fee.
Consequently, the defendant committed a breach of clause 2.1 of the Deed when the defendant failed to
provide the free parking facility for yacht at a private jetty to the plaintiff on 1.10.2009 when the plaintiff took
vacant possession of the bungalow. Even though the private jetty has now been constructed and completed,
clause 2.1 has not yet been complied with. This is because the private jetty cannot be utilised until such time
as the approval from the relevant authorities for its construction is first obtained. Without the approval, the
private jetty is an illegal structure thereby depriving the plaintiff of the free parking facilities for yacht.
In the light of the above findings, the remaining issues pertain to nature of the reliefs sought by the plaintiff. In
the circumstances of this case, specific performance would not be an appropriate remedy. The granting of
the approval for the private jetty is within the purview of the relevant authorities; it is beyond the defendant's
control. It would be more appropriate for an order for damages as prayed for in the Statement of Claim.
Learned counsel for the plaintiff submission is that the damages would be the loss of bargain being the
extent to which the market value of the property in question exceeded the contract price (Halsbury's Laws of
England 4th Edition Vol. 12 para 1128). The plaintiffs contention is that his bungalow costs RM200.000.00
more than other identically designed bungalows on the same row but without a private jetty.
The Court is not satisfied that the plaintiff has made out his assertion that he paid a premium of
RM200.000.00 for a private jetty. His contention is not consistent with the SPA and the Deed. Both the SPA
and the Deed are contemporaneous documents and are fully comprehensive in its terms and conditions. His
explanation that he did not read the documents he signed does not lend support to his contention; he is
bound by the SPA and the Deed. Furthermore, the Deed makes express reference to the private jetty and to
the fact that the defendant only agreed to provide free lifetime parking for yacht or boat at a private jetty. As
the plaintiff was deprived of the free parking for yacht or boat at a private jetty, the measure of damages
should relate to the loss of use. In this regard, no evidence was adduced by the plaintiff as to whether he had
a yacht or boat and even if he did, no evidence as to whether he incurred expenses to park his yacht or boat
at another jetty. In the premises, the Court awards the plaintiff nominal damage of RM5.000.00. Costs to be
taxed unless otherwise agreed.
---- End of Request ----
Print Request: Current Document: 7
Time Of Request: Monday, September 25, 2017 00:46:34